The Wisdom of the Hanging Trees: The Zimmerman Case As A Test of Our Justice System

A popular symbol of justice in America is a woman with a sword in one hand, a scale in another, wearing a blindfold.  Justice is supposed to be blind.

 

But of course it hasn’t always been.  It was at best an ideal to be strived toward but not always achieved.  One extreme example is the infamous Scottsboro Boys case.  It came to the Supreme Court a few times, most famously in Powell v. Alabama (1932).  I’ll let the Supreme Court describe what happened.

The record shows that on the day when the offense is said to have been committed, these defendants, together with a number of other negroes, were upon a freight train on its way through Alabama. On the same train were seven white boys and the two white girls. A fight took place between the negroes and the white boys, in the course of which the white boys, with the exception of one named Gilley, were thrown off the train. A message was sent ahead, reporting the fight and asking that every negro be gotten off the train. The participants in the fight, and the two girls, were in an open gondola car. The two girls testified that each of them was assaulted by six different negroes in turn, and they identified the seven defendants as having been among the number. None of the white boys was called to testify, with the exception of Gilley, who was called in rebuttal.

Before the train reached Scottsboro, Alabama, a sheriff's posse seized the defendants and two other negroes. Both girls and the negroes then were taken to Scottsboro, the county seat. Word of their coming and of the alleged assault had preceded them, and they were met at Scottsboro by a large crowd. It does not sufficiently appear that the defendants were seriously threatened with, or that they were actually in danger of mob violence; but it does appear that the attitude of the community was one of great hostility. The sheriff thought it necessary to call for the militia to assist in safeguarding the prisoners. Chief Justice Anderson pointed out in his opinion that every step taken from the arrest and arraignment to the sentence was accompanied by the military. Soldiers took the defendants to Gadsden for safekeeping, brought them back to Scottsboro for arraignment, returned them to Gadsden for safekeeping while awaiting trial, escorted them to Scottsboro for trial a few days later, and guarded the court house and grounds at every stage of the proceedings. It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. During the entire time, the defendants were closely confined or were under military guard. The record does not disclose their ages, except that one of them was nineteen; but the record clearly indicates that most, if not all, of them were youthful, and they are constantly referred to as "the boys." They were ignorant and illiterate. All of them were residents of other states, where alone members of their families or friends resided.

However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. With any error of the state court involving alleged contravention of the state statutes or constitution we, of course, have nothing to do. The sole inquiry which we are permitted to make is whether the federal Constitution was contravened...; and as to that, we confine ourselves, as already suggested, to the inquiry whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.

First. The record shows that immediately upon the return of the indictment defendants were arraigned and pleaded not guilty. Apparently they were not asked whether they had, or were able to employ, counsel, or wished to have counsel appointed; or whether they had friends or relatives who might assist in that regard if communicated with. That it would not have been an idle ceremony to have given the defendants reasonable opportunity to communicate with their families and endeavor to obtain counsel is demonstrated by the fact that, very soon after conviction, able counsel appeared in their behalf. This was pointed out by Chief Justice Anderson in the course of his dissenting opinion. "They were non-residents," he said, "and had little time or opportunity to get in touch with their families and friends who were scattered throughout two other states, and time has demonstrated 53*53 that they could or would have been represented by able counsel had a better opportunity been given by a reasonable delay in the trial of the cases, judging from the number and activity of counsel that appeared immediately or shortly after their conviction."

It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard.

In short the Supreme Court decided that the right to be represented by counsel was guaranteed by the due process clause of the Fourteenth Amendment in state proceedings (it was already explicitly provided in Federal cases) and that the Scottboro boys had been denied this right to counsel.  Of course this was only the beginning of their trip through hell, and their lives ended up ever after ruined as this site indicated.  It is worth taking a moment to read it.

These young men were profiled.  They fit what the community thought was a familiar narrative, filled with images such as on the left.

That is from Birth of a Nation, where a drooling black man (depicted by a white man in “blackface” make up), attempts to rape a white woman.  It was believed by racist whites that all or most black men wanted to rape white women for various reasons, so when the accusation was made, most of the white folks were half convinced it was true just upon hearing the accusation—no evidence required.

This is not to say that no black man in the 1930’s or earlier ever raped a white woman in the South.  But the prejudice was so high that you couldn’t trust a jury to discern accurately between the guilty and the innocent, or at least those who are not proven guilty beyond a reasonable doubt.

I think when it comes to overcoming prejudice by society there are three stages of how a group is treated in popular media.  The first is vilification.  The disfavored group is depicted as the devil incarnate.  Then, if people start to rethink their prejudices, they go the opposite way: the rolls are reversed.  So for a long time in movies every black man depicted was a paragon of virtue, handsome well educated, and so on.  Think of Sidney Poitier’s most famous roles.  And if it was a movie in which someone needed to die heroically, there was a fair chance it would be the black guy, such as was the case in The Dirty Dozen.  And then at some point people just start treating that group as anyone else.  They might be heroes, villains or anywhere in between, just like anyone.

So there is a time where the stereotypes were reversed.  In the 1930’s, black men were stereotyped as wanting to rape white women.  But when Susan Estrich reported that she had been raped by a black man, she found herself facing a new steteotype, that of a white woman falsely accusing a black man of rape.  In her autobiographical writings (read by me years ago), she reported that the authorities didn’t take her seriously precisely because they thought it fit into that template.  I don’t know if Susan Estrich was actually raped.  I lean toward yes, but I haven’t heard a thing out of the accused so I won’t draw any conclusions.  But if she was raped, and she couldn’t get justice, it was because she was paying the price for the misbehavior of women who came before her.  Naturally that cannot reasonably be called justice.

This was the inverse, of course, of what happened when white men raped black women.  Of course it was always illegal to rape regardless of color, but in the days of slavery those laws were pretty meaningless.  Even if you had a prosecutor interested in prosecution, you often had insurmountable boundaries to evidence.  For instance, many states would not allow a black person to testify against a white person at all, or only with another white person first testifying that the black person was trustworthy.  And even then you had to worry about the jury refusing to prosecute just because they didn’t want to punish a white man for harming a black woman.  So while it was technically illegal for a white man to rape a black woman, back then a white man had little fear that he would be punished.  And thus black women were victimized.

So a few years back, in North Carolina, we saw another reversal of stereotypes in the Duke Lacrosse case.  Much like the Scottsboro boys, we had a doubtful accusation of interracial gang rape, and too many people started fitting it into historical templates.  Too many people intoned that “historically white men had victimized black women with impunity.”  That was true, of course, but it had no bearing on this case with these facts.  In too many people’s minds, the stereotype of the rapine white men, seeking to pray on a black woman (combined with stereotypes of rapist jocks) had become so powerful that it created such a groundswell of political pressure to prosecute these men that Nifong famously withheld exculpatory evidence and lost his license to practice law over it.

And so we come to the Zimmerman trial, and history repeated itself, only at times it seemed more like farce.  The template was immediately set: a redneck white guy hunted down and murdered an innocent black man and was let off the hook by the “good old boys” in the police.  And there can be no doubt that this sort of thing happened in the past, but that has no bearing on what happened in this case.

Indeed, the Zimmerman case never fit the template at all.  Zimmerman is not a white man by any reasonable definition.  He self-identifies himself as Hispanic, and he is even partially black.  Indeed, he is as black as Herman Plessy of Plessy v. Ferguson (1896) fame.  And that taps into a deep thought I have about racial classifications.  To me the only significance of race is the existence of racism.  So for me the entire point of the inquiry of what a “race” a person belongs to is whether it is likely to inspire discrimination and from whom and on what basis.  If a white racist encounters George Zimmerman, he is not usually going to see him as “one of their own.”  But a racist Hispanic might.

So the entire theory of a “good old boys network” saving one of their own never made any sense.  And while it is not impossible to hate one’s own ancestry, the fact he is partially black makes it unlikely that he hates black people.

But it became important, for some reason, for the left to play out this racial morality play.  “In the past, a white man could murder a black man and get away with it, but not this time,” seems to have been the thought.  And if the Zimmerman case didn’t fit into the template, if the square peg is not fitting in the round hole, by  God, we will hammer it in.  So Zimmerman’s heritage was denied and this man who actually fought for justice for a black man, was made out to be a racist, people falsely accused him of calling Martin a f---king coon, and NBC deceptively edited the 911 recording to make it sound like he thought being black was inherently suspicious.  They created a national uproar until the politicians felt they had to put him on trial, whether he deserved it or not.  They demoted officers who protested.  They just fired the state’s attorneys’ office information technology director for giving the defense required discovery.  And there are people threatening to riot if Zimmerman gets off.

The ugly reality is that people have been so whipped up there is a real concern that he will die no matter what happens in this case: shived in prison if he is convicted, or lynched on the streets if he is set free.  The singer/rapper Speech from the band Arrested Development once sang about going back to Tennessee where he “walk[ed] the roads my forefathers walked/Climbed the trees my forefathers hung from.”

Perhaps when they go to hang Zimmerman they can find one of those trees.  Or instead, like Speech, they might “ask those trees for all their wisdom.”  The spirits of their fallen ancestors might tell those people that the lynchings done in the past were wrong, and doing the same to another will not make it better.

As I said in the beginning of this, there were two key questions.  Who struck first?  And did George Zimmerman reasonably believe that if he didn’t shoot, he would face death or great bodily injury.  There is literally only one piece of evidence on the first question: Zimmerman’s word.  If you think he is a liar you have no other evidence and no reasonable jury could find he definitely threw the first punch.  (Bear in mind my usual admonishment that Martin might have been allowed to throw the first punch as self-defense.)

The evidence got slightly stronger on the second question, but the greater weight of the evidence says that Martin was straddling Zimmerman, that he had broken his nose—which in many jurisdictions is a great bodily harm and even where it is not, you are well on your way to such harm—and he was still pounding on him even after he was told by Good to stop.  It is only then that Zimmerman pulled out his gun and shot the kid.  Even if you don’t believe that happened, am I being reasonable in believing that it happened?  If you say I am not, then you must agree that he should be acquitted, too.  And also the entire time this case was germinating, I always gave the caveat: I haven’t seen the state’s entire case.  So I was always open to the possibility of surprisingly powerful evidence that would prove Zimmerman's guilt beyond a reasonable doubt.  But it never came.

Well, the time for open-mindedness has passed.  It is time to close our minds upon a correct conclusion.  If you want to think Zimmerman is probably guilty, I won’t argue too much with you, as long as you recognize that there is a reasonable doubt as to his guilt.  And plainly, there is.

But like Professor Jacobson I have a bad feeling about this case.  It shouldn’t result in a conviction.  In fact, it shouldn’t have been brought.  But I am afraid that a jury of only six people might be swayed by fears of riots, by the media, by something other than those cold hard facts and send a man who shouldn’t go to prison to prison and possibly even to his death.

Or perhaps they will remember his black professor, saying a friendly “Hi” to his former student and take it as permission to set him free.

This is a test of our system.  Can justice truly be blind?  Can justice be done without being swayed by demagoguery and threats of riots?  And if he should be set free, will the public accept that it cannot exact by private violence in order to enforce hallucinated “justice” on the streets?  In other words, have we progressed past this image on the right?

Or are we only going to change the colors of the victims and the criminals?

And what wisdom would we get from the hanging trees on that subject?

This is the test of our system, and hopefully we will pass.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.